STATE OF PUNJAB Vs. BALBIR KAUR

JUDGEMENT

(1.) PLAINTIFF -respondent filed a suit for declaration that order dated 30. 8. 1983 as modified by order dated 8. 5. 1986 passed by the General Manager, Punjab Roadways, Ferozepur imposing upon him penalty of withholding one increment with cumulative effect was illegal, null and void. The suit was filed an 4. 6. 1990. The suit was opposed, inter alia, on the ground that it was barred by limitation. As a consequence of that preliminary objection taken in the written statement, trial court framed an issue being Issue No. 2, "whether the suit of the plaintiff is within limitation". The trial court under that issue concluded that the order imposing penalty of stoppage of increment was passed in contravention of mandatory provisions of the rules and the principle of natural justice and such an order is null and void and it is open to the Government servant to ignore such an order and claim arrears of pay and allowances which became due to him and were not given to him on account of a void order. It was further concluded that for claiming arrears of pay, limitation for filing the suit is three years and that the right to claim wages arises, at the end of every month because wages are payable monthly and this right continues to arise to the Government servant up to the age of superannuation. The trial court further concluded that the right to salary cannot be interrupted by a void order. As a consequence of the above, the trial court concluded that the suit was not barred by time and the plaintiff was entitled to pay and allowances for the period of three years preceding the date of filing of the suit. The suit was ultimately decreed by judgment and decree dated 17. 5. 1994. Appeal there-against was dismissed by learned Addl. District Judge by judgment and decree dated 28. 11. 1995. It is how this second appeal has been filed by the defendant-State.

(2.) SHRI J. S. Brar, learned DAG Punjab vehemently, submitted that the view taken by the courts below is contrary to law and the suit filed by the plaintiff deserves to be dismissed. According to the learned counsel, order of penalty even if held to be void, is required to be set aside within a period of three years in view of the judgment of the Supreme Court in State of punjab and Ors. v. Gurdev singh and Ashok Kumar, A. I. R. 1992 S. C. 111, and it can not be held that the plaintiff has a continuing cause of action accruing to him every month for claiming wages. Mr. Brar further submitted that the courts below have erred in granting the relief by placing reliance on The State of Punjab v. Parkash Singh, 1993 (3) Service Cases Today 394.

(3.) I have gone through the judgments cited by the counsel for the parties. In Gurdev Singh and Ashok Kumar's case (supra), services of the employee were terminated on 27. 1. 1977 on account of his absence from duty. He filed a suit on 18. 4. 1984, for declaration that the order of termination was against the principle of natural justice, terms and conditions of employment, void and inoperative and he continued to be in service. On an objection taken by the State, a question arose, whether the suit was barred by time. The trial court accepted the plea of limitation and dismissed the suit but on appeal, learned Additional District Judge, Jalandhar decreed the suit. He observed that the order of termination though simplicitor in nature was passed as a measure of punishment. Services were terminated without any enquiry and he should have been given an opportunity to explain his conduct by holding a proper enquiry. On the plea of limitation, learned Addl. District Judge held that no limitation was prescribed for challenging an illegal order and since the order of termination was bad, the suit was not barred by time. In second appeal, the High Court agreed with the view taken by the learned Addl. District Judge. It was in this situation, the Supreme Court observed;